Citation Nr: 0434205
Decision Date: 12/29/04 Archive Date: 01/05/05
DOCKET NO. 02-19 769 ) DATE
)
)
On appeal from the
Department of Veterans Affairs Regional Office in Columbia,
South Carolina
THE ISSUES
Entitlement to service connection for right eye disability,
to include on a secondary basis.
Entitlement to service connection for low back disability.
REPRESENTATION
Appellant represented by: Disabled American Veterans
WITNESS AT HEARING ON APPEAL
Appellant
ATTORNEY FOR THE BOARD
E. B. Redman, Associate Counsel
INTRODUCTION
The veteran served on active duty from March 1966 to March
1969. This matter comes before the Board of Veterans'
Appeals (Board) on appeal from rating decisions by the
Department of Veterans Affairs (VA) Regional Office (RO) in
Columbia, South Carolina.
In August 2004, a videoconference hearing before the
undersigned Veterans Law Judge was held. A transcript of
that hearing is of record. The Board notes that at the
hearing the veteran appeared to be raising a claim for
service connection for left eye disability. This matter is
referred to the RO for appropriate action.
FINDINGS OF FACT
1. All pertinent notification and indicated evidential
development have been accomplished.
2. Right eye disability was not present in service, nor is
it etiologically related to service or service-connected
disability.
3. The veteran does not currently have a low back
disability.
CONCLUSIONS OF LAW
1. Right eye disability was not incurred in or aggravated by
active duty. 38 U.S.C.A. § 1110 (West 2002); 38 C.F.R.
§ 3.303(2004).
2. Right eye disability is not proximately due to or the
result of service-connected disability. 38 C.F.R. § 3.310(a)
(2004).
3. Low back disability was not incurred or aggravated
during active service, and the incurrence or aggravation of
arthritis of the low back during such service may not be
presumed. 38 U.S.C.A. §§ 1101, 1110, 1112 (West 2002); 38
C.F.R. §§ 3.303, 3.307, 3.309 (2004).
REASONS AND BASES FOR FINDINGS AND CONCLUSIONS
Veterans Claims Assistance Act of 2000
The Veterans Claims Assistance Act of 2000 (VCAA), codified
at 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5106, 5107, 5126
(West 2002), and the regulations implementing the VCAA,
codified at 38 C.F.R. §§ 3.102, 3.156(a), 3.159 and 3.326
(2004), are applicable to the present appeal.
The Act and the implementing regulations essentially
eliminate the requirement that a claimant submit evidence of
a well-grounded claim, and provide that VA will assist a
claimant in obtaining evidence necessary to substantiate a
claim but is not required to provide assistance to a claimant
if there is no reasonable possibility that such assistance
would aid in substantiating the claim. They also require VA
to notify the claimant and the claimant's representative, if
any, of any information, and any medical or lay evidence, not
previously provided to the Secretary that is necessary to
substantiate the claim. As part of the notice, VA is to
specifically inform the claimant and the claimant's
representative, if any, of which portion, if any, of the
evidence is to be provided by the claimant and which part, if
any, VA will attempt to obtain on behalf of the claimant. In
addition, VA must also request that the veteran provide any
evidence in his possession that pertains to the claim.
The record reflects that through the statements of the case,
supplemental statements of the case, and letters dated in
March 2001, November 2001 and June 2003 from the RO, the
veteran has been informed of the evidence and information
necessary to substantiate his claims, the information
required of him to enable VA to obtain evidence in support of
his claims, the assistance that VA would provide to obtain
evidence and information in support of his claims, and the
evidence that he should submit if he did not desire VA to
obtain such evidence on his behalf. Although VA did not
specifically inform the veteran that he should submit any
pertinent evidence in his possession, it did inform him of
the evidence that would be pertinent and that he should
either submit such evidence or provide the RO with the
information necessary for the RO to obtain such evidence.
Therefore, the Board is satisfied that VA has complied with
the notification requirements of the VCAA and the
implementing regulations. See Quartuccio v. Principi, 16
Vet. App. 183 (2002).
The record also reflects that all pertinent available service
medical records and all available post-service medical
evidence identified by the veteran have been obtained. In
addition, the veteran has been afforded appropriate VA
examinations. Neither the veteran nor his representative has
identified any outstanding evidence or information that could
be obtained to substantiate the claims. The Board is also
unaware of any such outstanding evidence or information.
Therefore, the Board is also satisfied that the RO has
complied with the duty to assist provisions of the VCAA and
the implementing regulations.
The Board also notes that the United States Court of Appeals
for Veterans Claims (Court) has held that the plain language
of 38 U.S.C.A. § 5103(a) (West 2002), requires that notice to
a claimant pursuant to the VCAA be provided "at the time"
that, or "immediately after," VA receives a complete or
substantially complete application for VA-administered
benefits. Pelegrini v. Principi, 18 Vet. App. 112, 119
(2004). The Court further held that VA failed to demonstrate
that, "lack of such a pre-AOJ-decision notice was not
prejudicial to the appellant, see 38 U.S.C. § 7261(b)(2) (as
amended by the Veterans Benefits Act of 2002, Pub. L. No.
107-330, § 401, 116 Stat. 2820, 2832) (providing that "[i]n
making the determinations under [section 7261(a)], the Court
shall . . . take due account of the rule of prejudicial
error")." Id. at 121.
In the case at hand, the Board notes that the veteran was
provided VCAA letters prior to the initial adjudication of
these claims. In addition, when indicated, the veteran was
provided additional information by the RO. In the Board's
opinion, any procedural errors on the RO's part were
insignificant and non-prejudicial to the veteran.
Accordingly, appellate review may proceed without prejudice
to the veteran. See Bernard v. Brown, 4 Vet. App. 384
(1993).
Factual Background
A service medical record from September 1966 states that the
veteran had a deviated septum. An October 1966 service
medical record notes the veteran's complaints of headache and
nosebleed. Service medical records also show that in March
1967 the veteran was diagnosed with low back strain from
lifting artillery trails. The veteran described pain in the
midline at L1-2. There was no radiation and knee jerk
reflexes were normal. The recommendation included no duty
for two days and then limited duty for two days.
According to a May 1968 medical record from the Bethesda
Naval Hospital, the veteran underwent a surgical operation to
correct his nasal septal deformity on May 17, 1968. After
the surgery he was asymptomatic and was discharged to full
duty on May 23, 1968. The February 1969 separation
examination report notes no diagnosis or abnormal finding
with respect to the veteran's eyes or back. His vision was
noted to be 20/20.
A January 1996 medical history note from J.E. Rathburn, M.D.,
notes that the veteran is "blind in his right eye secondary
to trauma."
A June 1999 medical record from Grand Strand Regional Medical
Center notes that the veteran had mild tenderness in the
paraspinous musculature, L4-5. No etiology of such is
listed.
A June 1999 medical record from Coastal Neurology and
Internal Medicine notes that the veteran complained of
lumbosacral pain of two to three days' duration. He reported
that the pain is in the lumbosacral region and radiates down
the left lower extremity. Associated with the radiating pain
is numbness and paresthesias. The examiner stated that there
was no history of trauma to the head, neck or spine. Sensory
examination was intact; however, the veteran complained
subjectively of paresthesias along the lateral aspect of the
left thigh. The diagnostic impression was lumbosacral pain
with a radicular component in the left lower extremity, rule
out L5 versus S1.
A July 1999 medical record from King Internal Medicine notes
that the veteran complained of a constant ache in his low
back as well as some numbness in his left arm and leg.
An August 2000 medical record from Grand Strand Regional
Medical Center notes that the veteran had just been involved
in a motor vehicle accident. He complained of neck and back
pain.
An August 2000 medical record from King Internal Medicine
indicates that the veteran was seen for a follow-up visit
after a prior motor vehicle accident. The veteran complained
of spasms in the back and numbness in left thigh and calf.
A September 2000 Agent Orange Examination Report notes that
the veteran is blind in his right eye and that he had
undergone surgery three times for this eye.
An October 2000 VA Eye Clinic note states that the veteran
had been blind in his right eye for the past 16 years. The
note further states that there was blood vessel leakage,
cause unknown, and laser treatment. The impression was
maculopathy, probably from old vein occlusion. No etiology
of the old vein occlusion was noted.
An April 2001 VA progress note states that the veteran had
old central retinal vein occlusion trauma 17 years prior and
that the veteran had a 17 year history of macular detachment
for which treatment was not recommended.
In an August 2001 rating decision, the veteran was awarded
service connection for diabetes mellitus.
Statements submitted by the veteran in December 2001 and
February 2002 indicate that the veteran feels that his 1968
surgery at Bethesda Naval Hospital for a deviated septum is
the cause of his right eye disability.
VA progress notes from Charleston, South Carolina dated from
October 2001 to May 2002 note that the veteran has a history
of diabetes mellitus and diabetic neuropathy.
According to the report of a June 2002 VA examination, the
veteran reported that he began to lose vision in his right
eye in the early 1980s. He also reported that his diabetes
was diagnosed in 1996. The veteran further stated that no
one has been able to find an exact etiology of the bleeding
in his right eye. The examiner did not have the veteran's
medical records at the time of the examination, but issued
the following opinion: "it is unclear to me the etiology of
this vitreous hemorrhage that is apparently chronic in
nature." The examiner further opined that despite being
unable to make an adequate assessment without the veteran's
medical records, the timing of visual loss in the early 1980s
and the diagnosis of hypertension and diabetes in the mid
1990s suggests that the veteran's visual loss in the right
eye is unrelated to his diabetes and hypertension. In an
addendum contained in the same report, the examiner offered
another opinion after reviewing the veteran's medical
records. The examiner stated that there are no records in
the claims folder related to the veteran's right eye
disability. The examiner did not have the veteran's medical
records from the 1968 septal deviation surgery; therefore,
without those available, the examiner opined that the vision
loss of the right eye is not related to service.
In a June 2003 statement, the veteran indicated that his
medical records from an eye treatment facility in Connecticut
are not available because they were discarded.
The report of a September 2003 VA examination notes that the
examiner reviewed the claims file, which included the
operative note from the 1968 surgery for a deviated septum.
The examiner stated that the operative report showed no
visual loss related to the surgery. The examiner further
stated that the only connection between the veteran's surgery
and his visual loss is the veteran's own statements. The
report states that the veteran noted that a VA doctor told
him that the right eye was leaking fluid for 17 years and
that the most probable cause of this leaking fluid was the
1968 surgery. The examiner stated that a record of that
doctor's statement was not found. The examiner opined that
there is no connection between the veteran's chronic vitreous
hemorrhage in his right eye and his deviated septum surgery
in 1968. The examiner stated that such opinion was based
upon a review of the medical records, which do not
substantiate the claims. Moreover, the examiner stated that
although there were two significant VA eye visits, there was
no mention of the etiology of the central retinal vein
occlusion in the right eye.
In November 2003, the veteran submitted a statement in which
he claims that his right eye disability is due to his
diabetes.
A July 2004 progress note states that the veteran was seen
for complaints of pain in the right eye; the veteran also
reported that he is blind in that eye from glaucoma and
diabetes. Further medical records from July 2004 note that
the veteran underwent an evisceration of the right eye. One
week after the surgery the pain had resolved, the wound was
intact, and there was no significant discharge.
At the August 2004 videoconference hearing the veteran stated
that he received treatment for his back in the 1970s and
1980s in Connecticut. He indicated that he was no longer
claiming that his right eye disability was due to the surgery
in service for a deviated nasal septum. He testified that
his vision began to decrease in the 1980s and that a
physician from the Charleston VA Medical Center stated that
his right eye disability is due to diabetes. The record was
held open for 90 days in order to allow the veteran to submit
outstanding VA records and any medical nexus evidence that he
was able to obtain.
In November 2004 the Board received additional evidence as
well as a waiver of initial consideration of the evidence by
the RO. The veteran also submitted a short statement
indicating that he had no evidence to submit regarding
treatment of his back during the 1970s or 1980s from the
Connecticut Hospital. He did submit an August 2004
ophthalmology progress note. According to the ophthalmology
progress note, the VA examiner stated that the veteran's
medical records do not document that diabetes mellitus
complications led to his no light perception, painful eye.
The progress note also states that the veteran described a
history of diabetic retinopathy of the right eye and retinal
detachment of the right eye, which the veteran said, may have
contributed entirely or in part to his eye pathology.
Legal Criteria
Service connection may be granted for disability resulting
from personal injury suffered or disease contracted during
active military service, or for aggravation of a pre-existing
injury suffered, or disease contracted, during such service.
38 U.S.C.A. § 1110 (West 2002); 38 C.F.R. § 3.303 (2004).
Additionally, service connection may be granted for any
disease initially diagnosed after discharge, when all the
evidence, including that pertinent to service, establishes
that the disease was incurred in service. 38 C.F.R. §
3.303(d).
Direct service connection may not be granted without medical
evidence of a current disability, medical or, in certain
circumstances, lay evidence of in-service incurrence or
aggravation of a disease or injury; and medical evidence of a
nexus between the claimed in-service disease or injury and
the present disease or injury. See Caluza v. Brown, 7 Vet.
App. 498, 506 (1995) aff'd, 78 F.3d 604 (Fed. Cir. 1996)
(table)].
Where a veteran served for at least 90 days during a period
of war or after December 31, 1946, and manifests arthritis to
a degree of 10 percent within one year from the date of
termination of such service, such disease shall be presumed
to have been incurred or aggravated in service, even though
there is no evidence of such disease during the period of
service. 38 U.S.C.A. §§ 1101, 1112; 38 C.F.R. §§ 3.307,
3.309.
Service connection may also be granted for disability which
is proximately due to or the result of a service-connected
disease or injury. 38 C.F.R. § 3.310(a). Additional
disability resulting from the aggravation of a nonservice-
connected disability by a service-connected disability is
also compensable under 38 C.F.R. § 3.310(a). Allen v. Brown,
7 Vet. App. 439, 448 (1995) (en banc).
Congress has specifically limited entitlement to service-
connection for disease or injury to cases where such have
resulted in a disability. 38 U.S.C.A. §§ 1110, 1131. Hence,
in the absence of proof of a present disability (and, if so,
of a nexus between that disability and service), there can be
no valid claim for service connection. Gilpin v. West, 155
F.3d 1353 (Fed. Cir. 1998); Brammer v. Derwinski, 3 Vet.
App. 223, 225 (1992). The Court has consistently held that,
under the law cited above, "[a] determination of service
connection requires a finding of the existence of a current
disability and a determination of a relationship between that
disability and an injury or disease incurred in service."
Watson v. Brown, 4 Vet. App. 309, 314 (1993). This principle
has been repeatedly reaffirmed by the Federal Circuit, which
has stated that "a veteran seeking disability benefits must
establish . . . the existence of a disability [and] a
connection between the veteran's service and the
disability." Boyer v. West, 210 F.3d 1351, 1353 (Fed. Cir.
2000).
Except as otherwise provided by law, a claimant has the
responsibility to present and support a claim for benefits
under laws administered by the Secretary. The Secretary
shall consider all information and lay and medical evidence
of record in a case before the Secretary with respect to
benefits under laws administered by the Secretary. When
there is an approximate balance of positive and negative
evidence regarding any issue material to the determination of
a matter, the Secretary shall give the benefit of the doubt
to the claimant. 38 U.S.C.A. § 5107 (West 2002); see also
Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990). To deny a
claim on its merits, the evidence must preponderate against
the claim. Alemany v. Brown, 9 Vet. App. 518, 519 (1996),
citing Gilbert, 1 Vet. App. at 54.
Analysis
I. Right Eye
The veteran initially contended that he is entitled to
service connection for right eye disability because it was
incurred in service as a result of surgery in 1968, but he
later abandoned this theory and alleged that the disability
is secondary to his service-connected diabetes mellitus.
With respect to the veteran's initial theory of entitlement,
the Board notes that service medical records show no evidence
of any right eye injury or disease, the post-service medical
evidence contains no support for the veteran's contention,
and the September 2003 VA examiner, who reviewed the 1968
deviated septum operative note, as well as the entire claims
file, opined that there is no connection between the
veteran's chronic vitreous hemorrhage in his right eye and
his deviated septum surgery in 1968. Furthermore, according
to the VA Eye Clinic note in April 2001, the cause of the
blood vessel leakage and subsequent right eye blindness are
unknown. The October 2000 VA Eye Clinic report states that
the veteran's maculopathy is probably from an old vein
occlusion; however, no etiology of the vein occlusion is
listed.
The evidence of a nexus between the veteran's right eye
disability and his military service is limited to the
veteran's own statements. This is not competent evidence
since laypersons, such as the veteran, are not qualified to
render an opinion concerning medical causation. See Espiritu
v. Derwinski, 2 Vet. App. 492, 494 (1992).
With respect to the veteran's argument that his right eye
disability is the result of his service-connected diabetes,
the Board notes that none of the medical evidence of record
links the veteran's right eye disability to diabetes. In
addition, the medical evidence suggests, and the June 2002 VA
examination report addendum states, that because the
decreased vision in the right eye began in the 1980s and the
diagnosis of diabetes was not made until the mid-1990s, it is
unlikely that the right eye disability is related to the
diabetes.
Furthermore, in an August 2004 ophthalmology progress note a
VA examiner stated that the veteran's medical records do not
document that diabetes mellitus complications led to no light
perception painful eye. Accordingly, service connection on a
secondary basis is also unwarranted
In reaching this conclusion, the Board has considered the
benefit-of-the-doubt doctrine. However, as the preponderance
of the evidence is against the veteran's claim, that doctrine
is not applicable.
II. Low Back
The veteran has claimed entitlement to service connection for
a low back disability. He maintains that he injured his back
in service while lifting auxiliary guns.
Service medical records show that the veteran was seen for
complaints of low back pain in March 1967, when he was
diagnosed with low back strain from lifting artillery trails.
After two days of no duty and two days of light duty, the
veteran returned to full duty without complaint of residual
pain. The separation examination report is negative evidence
of any low back disorder. Moreover, there is no later
medical evidence of any back trouble until June 1999, when
the veteran reported mild tenderness in the paraspinous
musculature, L4-5. However, there is no medical evidence of
a nexus between these findings and the in-service injury, and
this complaint of mild tenderness is not until 30 years after
service.
Finally, the Board notes that the veteran was involved in a
motor vehicle accident in August 2000, and received treatment
for back complaints at that time. There is nothing in the
August 2000 records connecting the veteran's back complaints
to service. Moreover, they do not show that the veteran was
found to have a chronic low back disorder and the later
medical evidence is negative for the presence of a current
low back disorder.
At the August 2004 videoconference hearing the veteran stated
that he received treatment for his back in the 1970s and
1980s in Connecticut. Despite the record being held open for
90 days, the veteran reported in November 2004 that he was
unable to obtain any of those records. In any event, the
record contains no medical evidence suggesting the presence
of degenerative changes of the lumbar spine either in service
or after; and there is no medical evidence suggesting that
any current low back disability is etiologically related to
service.
The evidence a chronic low back disorder or of a nexus
between any currently present back disability and his
military service is limited to the veteran's own statements.
This is not competent evidence since laypersons, such as the
veteran, are not qualified to render a medical diagnosis or
an opinion concerning medical causation. See Espiritu v.
Derwinski, 2 Vet. App. 492, 494 (1992).
Accordingly, service connection is not in order for this
claimed disability. In reaching this conclusion, the Board
has considered the benefit of the doubt doctrine; however, as
the preponderance of the evidence is against the claim, that
doctrine is not applicable in the instant appeal.
ORDER
Entitlement to service connection for right eye disability,
to include on a secondary basis, is denied.
Entitlement to service connection for low back disability is
denied.
____________________________________________
Shane A. Durkin
Veterans Law Judge
Board of Veterans' Appeals
Department of Veterans Affairs
YOUR RIGHTS TO APPEAL OUR DECISION
The attached decision by the Board of Veterans' Appeals (BVA or Board) is
the final decision for all issues addressed in the "Order" section of the
decision. The Board may also choose to remand an issue or issues to the
local VA office for additional development. If the Board did this in your
case, then a "Remand" section follows the "Order." However, you cannot
appeal an issue remanded to the local VA office because a remand is not a
final decision. The advice below on how to appeal a claim applies only to
issues that were allowed, denied, or dismissed in the "Order."
If you are satisfied with the outcome of your appeal, you do not need to do
anything. We will return your file to your local VA office to implement
the BVA's decision. However, if you are not satisfied with the Board's
decision on any or all of the issues allowed, denied, or dismissed, you
have the following options, which are listed in no particular order of
importance:
? Appeal to the United States Court of Appeals for Veterans Claims
(Court)
? File with the Board a motion for reconsideration of this decision
? File with the Board a motion to vacate this decision
? File with the Board a motion for revision of this decision based on
clear and unmistakable error.
Although it would not affect this BVA decision, you may choose to also:
? Reopen your claim at the local VA office by submitting new and
material evidence.
There is no time limit for filing a motion for reconsideration, a motion to
vacate, or a motion for revision based on clear and unmistakable error with
the Board, or a claim to reopen at the local VA office. None of these
things is mutually exclusive - you can do all five things at the same time
if you wish. However, if you file a Notice of Appeal with the Court and a
motion with the Board at the same time, this may delay your case because of
jurisdictional conflicts. If you file a Notice of Appeal with the Court
before you file a motion with the BVA, the BVA will not be able to consider
your motion without the Court's permission.
How long do I have to start my appeal to the Court? You have 120 days from
the date this decision was mailed to you (as shown on the first page of
this decision) to file a Notice of Appeal with the United States Court of
Appeals for Veterans Claims. If you also want to file a motion for
reconsideration or a motion to vacate, you will still have time to appeal
to the Court. As long as you file your motion(s) with the Board within 120
days of the date this decision was mailed to you, you will then have
another 120 days from the date the BVA decides the motion for
reconsideration or the motion to vacate to appeal to the Court. You should
know that even if you have a representative, as discussed below, it is your
responsibility to make sure that your appeal to Court is filed on time.
How do I appeal to the United States Court of Appeals for Veterans Claims?
Send your Notice of Appeal to the Court at:
Clerk, U.S. Court of Appeals for Veterans Claims
625 Indiana Avenue, NW, Suite 900
Washington, DC 20004-2950
You can get information about the Notice of Appeal, the procedure for
filing a Notice of Appeal, the filing fee (or a motion to waive the filing
fee if payment would cause financial hardship), and other matters covered
by the Court's rules directly from the Court. You can also get this
information from the Court's web site on the Internet at
www.vetapp.uscourts.gov, and you can download forms directly from that
website. The Court's facsimile number is (202) 501-5848.
To ensure full protection of your right of appeal to the Court, you must
file your Notice of Appeal with the Court, not with the Board, or any other
VA office.
How do I file a motion for reconsideration? You can file a motion asking
the BVA to reconsider any part of this decision by writing a letter to the
BVA stating why you believe that the BVA committed an obvious error of fact
or law in this decision, or stating that new and material military service
records have been discovered that apply to your appeal. If the BVA has
decided more than one issue, be sure to tell us which issue(s) you want
reconsidered. Send your letter to:
Director, Management and Administration (014)
Board of Veterans' Appeals
810 Vermont Avenue, NW
Washington, DC 20420
VA
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Remember, the Board places no time limit on filing a motion for
reconsideration, and you can do this at any time. However, if you also plan
to appeal this decision to the Court, you must file your motion within 120
days from the date of this decision.
How do I file a motion to vacate? You can file a motion asking the BVA to
vacate any part of this decision by writing a letter to the BVA stating why
you believe you were denied due process of law during your appeal. For
example, you were denied your right to representation through action or
inaction by VA personnel, you were not provided a Statement of the Case or
Supplemental Statement of the Case, or you did not get a personal hearing
that you requested. You can also file a motion to vacate any part of this
decision on the basis that the Board allowed benefits based on false or
fraudulent evidence. Send this motion to the address above for the
Director, Management and Administration, at the Board. Remember, the Board
places no time limit on filing a motion to vacate, and you can do this at
any time. However, if you also plan to appeal this decision to the Court,
you must file your motion within 120 days from the date of this decision.
How do I file a motion to revise the Board's decision on the basis of clear
and unmistakable error? You can file a motion asking that the Board revise
this decision if you believe that the decision is based on "clear and
unmistakable error" (CUE). Send this motion to the address above for the
Director, Management and Administration, at the Board. You should be
careful when preparing such a motion because it must meet specific
requirements, and the Board will not review a final decision on this basis
more than once. You should carefully review the Board's Rules of Practice
on CUE, 38 C.F.R. 20.1400 -- 20.1411, and seek help from a qualified
representative before filing such a motion. See discussion on
representation below. Remember, the Board places no time limit on filing a
CUE review motion, and you can do this at any time.
How do I reopen my claim? You can ask your local VA office to reopen your
claim by simply sending them a statement indicating that you want to reopen
your claim. However, to be successful in reopening your claim, you must
submit new and material evidence to that office. See 38 C.F.R. 3.156(a).
Can someone represent me in my appeal? Yes. You can always represent
yourself in any claim before VA, including the BVA, but you can also
appoint someone to represent you. An accredited representative of a
recognized service organization may represent you free of charge. VA
approves these organizations to help veterans, service members, and
dependents prepare their claims and present them to VA. An accredited
representative works for the service organization and knows how to prepare
and present claims. You can find a listing of these organizations on the
Internet at: www.va.gov/vso. You can also choose to be represented by a
private attorney or by an "agent." (An agent is a person who is not a
lawyer, but is specially accredited by VA.)
If you want someone to represent you before the Court, rather than before
VA, then you can get information on how to do so by writing directly to the
Court. Upon request, the Court will provide you with a state-by-state
listing of persons admitted to practice before the Court who have indicated
their availability to represent appellants. This information is also
provided on the Court's website at www.vetapp.uscourts.gov.
Do I have to pay an attorney or agent to represent me? Except for a claim
involving a home or small business VA loan under Chapter 37 of title 38,
United States Code, attorneys or agents cannot charge you a fee or accept
payment for services they provide before the date BVA makes a final
decision on your appeal. If you hire an attorney or accredited agent within
1 year of a final BVA decision, then the attorney or agent is allowed to
charge you a fee for representing you before VA in most situations. An
attorney can also charge you for representing you before the Court. VA
cannot pay fees of attorneys or agents.
Fee for VA home and small business loan cases: An attorney or agent may
charge you a reasonable fee for services involving a VA home loan or small
business loan. For more information, read section 5904, title 38, United
States Code.
In all cases, a copy of any fee agreement between you and an attorney or
accredited agent must be sent to:
Office of the Senior Deputy Vice Chairman (012)
Board of Veterans' Appeals
810 Vermont Avenue, NW
Washington, DC 20420
The Board may decide, on its own, to review a fee agreement for
reasonableness, or you or your attorney or agent can file a motion asking
the Board to do so. Send such a motion to the address above for the Office
of the Senior Deputy Vice Chairman at the Board.
VA
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JUN
2003
(RS)
4597
Page
2